By BRENDAN J. LYONS Senior writer

Published 12:01 am, Friday, April 29, 2011

ALBANY -- The FBI's recent interest in a vote-fraud investigation in Troy was triggered by allegations made by a defense attorney for indicted Rensselaer County Democratic Elections Commissioner Edward G. McDonough, according to two attorneys familiar with the matter.

Brian D. Premo, who is McDonough's attorney, recently reached out to federal officials regarding his allegations that a special prosecutor has selectively targeted for prosecution two public officials: McDonough and Troy Councilman Michael LoPorto. In court filings Premo also questions whether the special prosecutor, Trey Smith, had inappropriate contact with District Attorney Richard McNally, who recused his office from the investigation.

At least nine people were identified as targets in the conspiracy. A grand jury handed up felony indictments in January against LoPorto and McDonough, but several other elected officials implicated in the investigation were not charged.

The allegations stem from the September 2009 primary elections when Republican operatives unearthed evidence that dozens of absentee ballots for the Working Families Party line had been forged. The ballots were handled by Democratic campaign workers and elected officials.

Premo has suggested in pre-trial filings in McDonough's case that Smith declined to prosecute the remaining Democrats due to political considerations and that McDonough and LoPorto were selected as "scapegoats."

"Unfortunately, the prosecution appears to be more about the personal interests of the (special prosecutor) and politics than personal responsibility and the interests of criminal justice," Premo wrote in a pre-trial motion that seeks to overturn the indictment and disqualify Smith.

A judge appointed Smith special prosecutor in September 2009 after McNally stepped off the case.

"There's no substance to such an allegation," Smith said Thursday, referring to the accusations Premo made in pre-trial motions.

Premo declined comment on his contact with the FBI. Earlier this week two agents assigned to the agency's white-collar/public corruption unit in Albany met with Premo at his Albany office, according to two people with knowledge of the meeting. The agents also have reviewed investigation documents and are setting up meetings with other attorneys involved in the case, according to a person briefed on the probe.

A federal grand jury has not been convened and it's unclear whether the FBI's probe will yield any prosecutorial action.

LoPorto and McDonough have pleaded not guilty. They are accused of taking part in a conspiracy to submit dozens of fraudulent absentee ballots on behalf of WFP voters, many from public housing complexes, whose ballots had forged signatures and included made-up excuses -- such as casino bus trips and health problems -- for why someone could not vote in person.

Federal officials declined to confirm their probe.

McDonough's DNA was recovered on some of the forged ballots and he is alleged to have played a key role in the fraud, according to court records filed by the special prosecutor. LoPorto's DNA was not found on the ballots but a witness has said he handed her a bundle of ballots that were later found to contain forged voter information.